Judgement Two consolidated appeals (No. 14 of 1922) from a judgment and two decrees (May 25, 1920) of the High Court reversing decrees of the Subordinate Judge (Second Court) of 24 Pargannas. The appellant; who was the purchaser of holdings at an auction sale for arrears of revenue under Act Law Rep. 50 Ind. App. 247 ( 1922- 1923) Mahomed Solaiman V. Birendra C handra Singh 283 XI. of 1859 sued to annul the defendants under-tenures and to eject them. The defence was that there was no arrear of revenue, and that in any case the under-tenures were protected by s. 12 of Bengal Act. VII. of 1868. The Subordinate Judge decided all issues in favour of the plaintiff-appellant. Upon appeal the High Court reversed his decision, holding that there was no arrear at the date of the sale; the learned judges pronounced no opinion upon the question whether the under-tenures were protected by the section above mentioned. The facts appear from the judgment of the Judicial Committee. 1922. Nov. 9. Sir George Lowndes K.C, and Dube for the appellant. De Gruyther K.C. and Kenworthy Brawn for the representatives of the first respondent to the first appeal. Wallach for the first respondent to the second appeal. Nov. 28. The judgment of their Lordships was delivered by SIR JOHN EDGE. These are two consolidated appeals from two decrees, dated May 25, 1920, of the High Court at Calcutta, which reversed two decrees, dated January 31, 1918, of the Subordinate Judge (Second Court) of the 24 Pargannas. The decrees from which these consolidated appeals have been brought were respectively made in suits numbered 19 and 20 of 1917. In each of these suits the present appellant was the plaintiff, and some of the present respondents were the defendants in one of the suits and others of the present respondents were the defendants in the other of the suits. The suits were tried together, as were the appeals to the High Court. The suits are suits by an auction purchaser under Act XI. of 1859 of lands for ejectment of under-tenants and for mesne profits. The lands to which the suits relate are situate within the collectorate of the 24 Pargannas, a permanently settled District of Bengal, to which Act XI., of 1859 applies. On April 14, 1915, the Collector of the District issued notice and proclamation under Act XI. of 1859 of lands for ejectment of under-tenants and for mesne profits. The lands to which the suits relate are situate within the collectorate of the 24 Pargannas, a permanently settled District of Bengal, to which Act XI., of 1859 applies. On April 14, 1915, the Collector of the District issued notice and proclamation under Act XI. of 1859 that the holding No. 20a, which is the land now in question, would be sold under Act XI. of 1859 for the realization of Rs.6, 10 annas and 5 pies revenue in arrears from the year 1320 B.S. The holding was sold by auction on May 17, 1915, and was purchased by the plaintiff, who subsequently received a sale certificate. The Government revenue for an arrear of which the holding was sold was the revenue for 1320 B.S. The defendants were at the date of the auction sale under-tenants of lands in the holding sold, and the plaintiff claims to be entitled to eject them. The plaint and the written statement of Kumar Birendra Chandra Singh, a defendant in suit No. 19 of 1917, and the plaint and written statement in suit No. 20 of 1917, are in the printed record. In his plaints the plaintiff alleged that the Collector of the District, on May 17, 1915, put the holding No. 20A up for sale by auction under the provisions of Act XI. of 1859 for arrears of the Government revenue, and that he (the plaintiff), having purchased it at the sale, and having obtained the sale certificate, had, under s. 37 of Act XI. of 1859, acquired it free of all encumbrances, and had become entitled to annul all the subordinate rights, and to recover khas possession of the holding by ejecting the tenants holding any subordinate right, and claimed a decree for ejectment and mesne profits. The defence, so far as it is now material, was that there was no arrear of the Government revenue to recover which the Collector was entitled to sell the holding, and that in any case the defendants were Law Rep. 50 Ind. App. 247 ( 1922- 1923) Mahomed Solaiman V. Birendra C handra Singh 284 within the exceptions of s. 12 of Bengal Act VII. of 1868; that s. 37 of Act XI. of 1859 did not apply; and that the plaintiff was not entitled to eject the defendants. 50 Ind. App. 247 ( 1922- 1923) Mahomed Solaiman V. Birendra C handra Singh 284 within the exceptions of s. 12 of Bengal Act VII. of 1868; that s. 37 of Act XI. of 1859 did not apply; and that the plaintiff was not entitled to eject the defendants. The Subordinate Judge fixed five issues, of which issues (2.) and (3.) are now alone material. Issue (2.) was as follows "Is the sale valid and operative, and has the plain tiff acquired any title under the same by his purchase?" Issue (3.) was "Are the under-tenancies of the defendants protected under s. 12 of Act VII. of 1868, and whether they can be annulled? "Their Lordships will later have some observation to make as to issue (3.). The Subordinate Judge found that there was an arrear of the Government revenue of Rs.6, 10 annas 5 pies for 1320 B.S., which entitled the Collector to sell the estate and that the sale was good, and that the defendants were not within the exceptions of s. 12 of Bengal Act VII. of 1868, and he gave to plaintiff a decree for possession and mesne profits in each suit. From these decrees the defendants in each suit appealed to the High Court. In the memorandum of appeal to the High Court, in suit No. 19 of 1917, the third ground of appeal was "That the Court below should have held that there were no arrears due for which the sale could be held." The seventeenth ground of appeal was " That the Court below ought to have held that the tenure of this defendant has been existing from the time of the permanent settlement," and the twentieth ground of appeal was " That at any rate the Court below should have held that the tenure of this defendant is protected under the provisions of section 12 of Act VII. of 1868," The same grounds appear in the memorandum of appeal in suit No. 19. The High Court on appeal found that there was no arrear of the Government revenue which entitled the Collector to sell the estate and by its decrees dismissed the suits. From these decrees of the High Court these consolidated appeals have been brought. of 1868," The same grounds appear in the memorandum of appeal in suit No. 19. The High Court on appeal found that there was no arrear of the Government revenue which entitled the Collector to sell the estate and by its decrees dismissed the suits. From these decrees of the High Court these consolidated appeals have been brought. The first issue which their Lordships have to consider is —was there an arrear of the Government revenue for 1320 B.S., which entitled the Collector to sell the estate? That is an issue which depends upon the evidence in these suits and not upon the decision of the Board on the facts found by the Board in Haji Buksh Elahi v. Durlav Chandra Kar (( 1912) L. R. 39 I. A. 177. lain), as the High Court apparently thought it did. There was no evidence as to when the holding, of which the estate sold by the Collector in 1915 formed part, was granted, but there is evidence that one Syed Abdul Ali, who had purchased the holding No. 20-1 in Mauza Paik para from Srimati Dellorus Banu Begum on the 17th day of Bhadra 1269 B.S., appointed on September 15, 1862, Mok htars to apply on his behalf to the revenue authorities for mutation of names in his favour, and that on November 10, 1862, he gave to the Deputy Collector the following signed acknowledgment of having received a patta "I, Syed Abdul Ali, do hereby acknowledge to have received a patta for (17-5-4-2) of ground found by survey to be contained in the above Holding and assessed at the rent of Companys Rs. 20-12-4 per annum and I give this document as my kabuliyat, consenting to pay the above annual jama. Dated the 10th day of November 1862," The patta was evidence of his title to possession. In exchange for the patta Syed Abdul Ali gave to the Deputy Collector on November 10, 1862, a kabuliyat which so far as is material was as follows " This deed of kabuliyat is executed by Syed Abdul Ali to the following effect That I have got a permanent mourasi patta in respect of lands measuring 17 bighas 5 cottahs 4 chattaks and 10 gundahs the particulars of which are stated above, acknowledging as yearly rent thereof at Companys Rs.20-12 annas 4 pies. I shall pay the rent year bjr year. I shall pay the rent year bjr year. Accordingly on receiving a patta I execute this kabuliyat. November 10, 1862." Apparently, Syed Abdul Ali held direct from the Crown and not as an under-tenant, but whether his holding was recognized by the Government as an "estate" their Lordships do not know. Admittedly and Law Rep. 50 Ind. App. 247 ( 1922- 1923) Mahomed Solaiman V. Birendra C handra Singh 285 obviously the holding of Syed Abdul Ali of 1862 was subsequently partitioned and after that partition the yearly revenue of the partitioned part which was sold by the Collector was Rs.6, 10 annas, 5 pies. By s. 2 of Act XI., of 1859, it is enacted that " If the whole or a portion of a kist or instalment of any month of the era, according to which the settlement and kistbandi of any mahal have been regulated, be unpaid on the first of the following month of such era, the sum so remaining unpaid shall be considered an arrear of revenue." By s. 3 of that Act it is enacted so far as is material as follows " Upon the promulgation of this Act, the Board of Revenue at Calcutta shall determine upon what dates all arrears of revenue and all demands which by the Regulations and Acts in force are directed to be realized in the same manner as arrears of revenue, shall be paid up in each district under their jurisdiction, in default of which payment the estates in arrear in those districts, except as hereinafter provided, shall be sold at public auction to the highest bidder." According to the notification of the Board of Revenue, in force at the date of the sale here in question, June 28, 1914, was the day when the arrears of revenue which had become due for 1320 B.S. should be paid. The kabuliyat given by Syed Abdul Ali in 1862 does not expressly state when the yearly revenue should be paid. The learned Subordinate Judge came to the conclusion that the letting was for the Bengali year, and having regard to Act XI. The kabuliyat given by Syed Abdul Ali in 1862 does not expressly state when the yearly revenue should be paid. The learned Subordinate Judge came to the conclusion that the letting was for the Bengali year, and having regard to Act XI. of 1859 and the notification of the Board of Revenue which was applicable at the time of the sale, he found that one years revenue, Rs.6, 10 annas and 5 pies, was due on May 1, 1914, and was in arrear on May 17, 1915, and that the sale was consequently a valid sale. The learned judges of the High Court construed Syed Abdul Alis kabuliyat of 1862 as a letting by which the yearly rent should be payable not at the end of the Bengali year but on November 10 during the tenancy, and finding that in that view of the case there was no revenue in arrear at the date of the sale, for which the estates could be sold, they held that the sale was invalid and dismissed the suit. In their Lordships opinion the learned judges of the High Court misconstrued the kabuliyat of 1862 in holding that by it the letting was a yearly letting from November 10 and not for the Bengali year, and incorrectly found that at the date of the sale there was no arrear of revenue for which the Collector could sell the estate. November 10, 1862, was merely the date when Syed Abdul Ali signed the kabuliyat; he had in September, 1862, taken over a then existing tenancy of the estate. It appears from the accounts in the Collectors office that the tenancy was for the Bengali year. November 10, 1862, was merely the date when Syed Abdul Ali signed the kabuliyat; he had in September, 1862, taken over a then existing tenancy of the estate. It appears from the accounts in the Collectors office that the tenancy was for the Bengali year. Although the accounts relating to this estate, which were kept in the Collectors office, may not be in some matters easily understood by those who are not familiar with the system of keeping accounts in Collectors offices in that part of India, it has not been proved that they were not correctly kept by the native clerk in the office who was under the supervision of the Collector, who would understand what those accounts showed, and their Lordships are entitled to presume, and do presume, under s. 114, illustrations (e) and (f), of the Indian Evidence Act of 1872, that they were correctly kept, and that there was a Government revenue of Rs.6, 10 annas and 5 pies in arrear for 1320 B.S. to realize which the estate might have been, and was, in fact, sold on May 17, 1915, by the Collector. There remains to be considered the issue as to whether the defendants were or were not protected by the exceptions of s. 37 of Act XI. of 1859, or by the exceptions of s. 12 of Bengal Act VII. of 1868. The learned Subordinate Judge considered all the evidence in any way relating to the tenure of the Law Rep. 50 Ind. App. 247 ( 1922- 1923) Mahomed Solaiman V. Birendra C handra Singh 286 defendants, and he found that none of those under-tenures was shown to have existed at the time of the permanent settlement, and that none of the defendants was within the fourth exception of s. 12 of Bengal Act VII. of 1868. With those findings their Lordships agree. It may, however, possibly be, as the plaintiffs case in his plaint apparently was, that this was the case of a sale of an estate under Act XI. of 1859 and not of a tenure, not being an estate under s. 11 of Bengal Act VII. of 1868, and consequently that the exceptions to be considered were the exceptions of s. 37 of Act XL of 1859 and not the exceptions of s. 12 of Bengal Act VII. of 1868. of 1859 and not of a tenure, not being an estate under s. 11 of Bengal Act VII. of 1868, and consequently that the exceptions to be considered were the exceptions of s. 37 of Act XL of 1859 and not the exceptions of s. 12 of Bengal Act VII. of 1868. That question has not been considered by either of the Courts below, and on the evidence before their Lordships they are unable to decide it. In these consolidated appeals, however, the question as to whether the defendants were within the exceptions of s. 37 of Act XL of 1859 or were within the exceptions of s. 12 of Bengal Act VII. of 1868, is not substantially material, as it has not been proved that the third exception of s. 37 of Act XL of 1859 or the third exception of s. 12 of Bengal Act VII. of 1868 applies to the defendants or to any of them, and the wording of the fourth exception of s. 37 of Act XL of 1859 and of the fourth exception of s. 12 of Bengal Act VII. of 1868 are for present purposes practically the same, as it is not suggested that in any of these under-tenancies mines have been sunk, and the gardens of the fourth exception of s. 37 of Act XI. of 1859 must mean permanent gardens. There was some evidence that there were wells on the lands, but they seem to have been very shallow and small wells, and not such wells as were meant by the fourth exception, and it has not been suggested that this exception would apply to them. The Subordinate Judge did not refer to the evidence of Baiju Nunia, who said that on one of these under-tenancies there was a two-storied pacca house. Probably the Subordinate Judge thought that that witnesss evidence was not worth considering. In their Lordships opinion it was worthless. No one else said that there was a pacca two-storied house on any of the holdings, and the witness, when he gave his evidence, was about eighty years of age and had been blind for ten years. Probably the Subordinate Judge thought that that witnesss evidence was not worth considering. In their Lordships opinion it was worthless. No one else said that there was a pacca two-storied house on any of the holdings, and the witness, when he gave his evidence, was about eighty years of age and had been blind for ten years. Before concluding this judgment, their Lordships must allude to the fact that the learned judges of the High Court, before whom the appeal to their Court was heard, did not express any opinion as to whether the defendants or any of them were protected from ejectment by any of the exceptions of s. 37 of Act XI. of 1859, or of s. 12, Bengal Act VII. of 1868. The issue on that subject was before them and they should have considered it and found upon it. Their Lordships will quote for the information of those learned judges what Lord Justice Turner, in delivering the judgment of the Board in Tarakant Bannerjee v. Puddomoney Dossee(( 1866) 10 Moo. I. A. 476, 483.) said as to the duty of High Court judges to pronounce their opinions on all important issues in cases before them. The Lord Justice said " The cause has not been decided in either Court on the principal point—whether the lands formed part of the jote tenure or of the talook. Their Lordships are unfortunately unable to decide this appeal finally by reason of this defect. The Courts below, in appealable cases, by forbearing from deciding on all the issues joined, not infrequently oblige this Committee to recommend that a cause be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases the Courts below should, as far as may be practicable, pronounce their opinions on all the important points." Their Lordships will humbly advise His Majesty that these consolidated appeals should be allowed with costs, the decrees of the High Court should be set aside with costs and the decrees of the Subordinate Judge should be restored.